Chism, Churchill & Co. v. Thomson

• Decision Date: 27 January 1896
• Parties: CHISM, CHURCHILL & CO. v. LAURA J. THOMSON
• Court: Mississippi Supreme Court

19 So. 210

73 Miss. 410

CHISM, CHURCHILL & CO. v. LAURA J. THOMSON

Supreme Court of Mississippi

January 27, 1896

October 1895

FROM the chancery court of Benton county HON. B. T. KIMBROUGH Chancellor.

The appellee, complainant in the court below, alleged in her bill that, on April 1, 1891, her husband, M. H. Thomson, was indebted to the firm of which appellants are successors in the sum of $ 5, 000, evidenced by his note dated January 14 1891, and due January 1, 1892, and that, on the day first mentioned, he and complainant executed a deed of trust on her land in Benton county, Mississippi, to secure the same; that when her husband executed the note he at the same time executed a deed of trust to secure it on certain horses and mules on his plantation in Arkansas, and the farming implements and wagons thereon, and on all the crops to be grown thereon for the year 1891, which afforded ample security; that, on May 10, 1892, the defendants, appellants here, by their trustee, in a settlement with her husband marked the said last mentioned deed of trust "satisfied" and delivered the same up to him extended the time of payment of the balance of the indebtedness evidenced by said $ 5, 000 note until some time in the fall of 1892, and took a new note and deed of trust to secure said balance, on certain horses and mules and the crops to be grown on his Arkansas place in the year 1892, all of which was done without her knowledge or consent.

She further alleged that she was also the owner of a plantation in Arkansas, and rented it for the year 1891 to one T. B. West, for the sum of $ 810; that West had never paid any of said rent, and the whole remained due; that during said year he raised and gathered cotton from said lands of the value of $ 1, 000, on which she had a lien for rent; that West shipped to defendants all of said cotton without her knowledge or consent. She alleged that her Benton county lands were advertised for sale under the deed of trust thereon, and would be sold, and a cloud cast upon her title by such sale, and prayed for a temporary injunction against the sale of the same, and for an accounting and decree against defendants for so much of the proceeds of the cotton received from West as was necessary to satisfy her rent claim, and the perpetuation of the injunction on final hearing.

The defendants, in their answer, admitted that the deed of trust on the personal property in Arkansas was surrendered to complainant's husband, with an indorsement thereon indicating satisfaction, and that a new deed of trust was taken, which was intended to operate as additional security to the old deed of trust, but averred that the mortgage on the Mississippi land was never satisfied, and that a large part of the $ 5, 000 was still unpaid, and that the indorsement on the deed of trust was intended to note the fact that a new trust deed had been taken, and, if it expressed anything else, it was a mistake on the part of the trustee, and denied that the taking of this additional security operated as a release of the security then held. She also denied that they had received any cotton on which complainant had a lien for rent, but said that, if they had, it was received with her knowledge and consent, and that she had allowed her husband to so intermingle the cotton with his own that she was estopped from claiming it; that they were commission merchants, doing business in Memphis, Tenn. and that they had received no cotton from any of the parties named in the bill, save complainant's husband, all of which they received and sold, applying the proceeds to his account in good faith.

The nature of the evidence is disclosed by the view taken of it in the opinion of the court. The court below perpetuated the injunction against the sale of the complainant's land in Benton county, described in the trust deed of April 1, 1891, but denied her relief as to the value of the cotton on which she claimed to have a landlord's lien for rent. From this decree, both an appeal and cross appeal were prosecuted.

Affirmed on appeal and on cross appeal.

R. T. Fant, for appellants.

1. The appellants have never released, or shown any disposition to release, the deed of trust on the land in controversy, but have always regarded it as a security for their debt.

There are circumstances in the case that relieve the cancellation of her husband's trust deed on the Arkansas property of the effect upon her rights as surety that would ordinarily attend the act. Her husband led the defendants to believe that the lands in controversy were his, and the trust deed thereon, in which she joined, contained a provision that, in case of sale thereunder, the balance of proceeds after payment of the debt secured, should be paid to her husband thus confirming her husband's statement, and misleading and deceiving appellants as to the title. Under the law, she is now estopped to assert title in said lands to the prejudice of appellants as...